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14 April 2018

Copyright: Content, Carriage, and Creation

Copyright law regulates ownership of and trade in works it deems protectable via the 1957 Copyright Act which contains both substantive and procedural provisions. In doing so, it establishes criteria which potentially protectable works (such as literature, music, art, film, and drama) must satisfy in order to be protected.

Although the statute came to India as a developed law, the Copyright Act isn't always entirely clear, and debates about what should be protectable can involve issues of content, its carriage, and its creation. In some cases, it is not the statute which presents legal ambiguity. Instead, it is moral anxieties relating to whether specific content should be protectable that gives rise to debate and uncertainty.

Content, of course, is little more than an umbrella term which may be used to describe any contrivance through which the right to free speech can be exercised in a way that can not only be appreciated by an audience face-to-face but can also be accessed remotely by those to whom the speech is not addressed in real time. In terms of the substance of speech (or the contents of content), copyright law has very little say. It denies protection to some works on account of their not being original or their being infringing. It may also refuse to protect works because they lack the requisites which it demands: the non-artistic features of architectural works, for example, cannot be protected by copyright.

The bulk of regulations which impact content, however, come not from either copyright theory or its governing statute but from a vast array of legal instruments which make various forms of speech illegal whether they be defamatory or seditious or illegal on some other account; copyrighted content is not free of such regulations regardless of how it has been created or transmitted. Nonetheless, there are arguments to the effect that copyright should not protect certain forms of content on account of the nature of the speech encapsulated within them. Such arguments usually find a basis, however unstable, in morality, and tend to manifest as demands that copyright not protect explicit or otherwise supposedly immoral content.

In recent times, there have been occasions when content has not been protected by copyright due to its substance. It has been held at least once (though not in India) that porn cannot be protected by copyright if it were not considered a 'personal intellectual creation' in terms of the applicable law. Such events, however, tend to be a result of purported works not meeting statutory criteria for copyrightability. Doctrines such as those of scènes à faire (which deals with content that is all but obligatory in a specific kind of work) and merger (which applies where ideas and their expression are inseparable) may also reinforce statute and deny copyright protection to some content. These restrictions on copyrightability, however, do not regulate what the permissible subject-matter of a copyrightable work may be, and there is no convincing argument that speech regulation per se is a territory into which copyright should tread. If not anything else, it would be all but impossible to determine the legality of speech in content for every purportedly protectable work before actually granting protection to it, especially since copyright subsists in a work from the moment that it is created.

Apart from concerns about the substance of speech, there are concerns about carriage. This stems not least from ambiguities within the copyright statute which sometimes appears to be workable only by happy accident. For example, questions have arisen about what the word ‘broadcast’ relates to. Although one might ordinarily understand a broadcast with reference to content, the definition contained in Section 2(dd) of the Copyright Act treats ‘broadcast’ not as content but as an act of transmission. It is, under this definition, a subset of communication to the public which is itself an act which may be executed in respect of copyrighted works. This, unsurprisingly, can give rise to questions about what it is that the broadcast reproduction right described in the copyright statute intends to protect: content or carriage. Luckily, a close reading of Section 37 which defines the broadcast reproduction right reveals that each reference to ‘broadcast’ alone in it refers to content, and that it cannot be construed as granting rights in broadcast technologies. The only time that carriage is referred to is with reference to a re-broadcast in terms analogous to the right to communicate works to the public which the owners and, possibly, the licensees of copyright in works enjoy.

The lack of differentiation between content and acts of commission is not limited to broadcasts, and can straddle the territory between carriage and creation . The 1957 Copyright Act defines a cinematograph film in Section 2(f) as ‘any work of visual recording’ which allows such works to be intangible, and betrays no requirement that the word ‘work’ be treated as a noun that must be interpreted with reference to Section 2(y) of the statute which defines the term merely by listing various kinds of works. That, however, is likely exactly what would have happened (rendering the definition circular and meaningless) if a cinematograph film had been defined as a ‘visually-recorded work’; the statute contains no indication that it was cognizant of such a possibility or that it actively sought to avoid such an eventuality. Luckily, as things stand, with some amount of interpretation, a cinematograph film can easily be understood with reference to ‘work’ being an act of commission in addition to being a noun, and this enables films including live broadcasts which have never been recorded on a tangible medium to fall squarely within the scope of content which copyright law considers protectable.

Looking at modes of creation alone too, copyright law does not accord or deny protection to content on account of the manner in which it is created. The statute is usually silent on the issue of tangibility, and it does not consider whether an author was acting legally in the creation of a work. This means that there is no statutory provision against the accordance of copyright protection to illegally created street art, for example. There are questions about whether such content should be protected though, and why, for instance, a property owner who believes a surface he owns has been vandalised should be obliged to respect the moral rights of an author, and not destroy or whitewash the work. At times, the ethical case is reasonably clear: it is unlikely that street artists who acted illegally would find a sympathetic court were they to attempt to complain of their works being whitewashed despite possibly being protected by copyright. At other times, however, the issues are not as clear and moral certainties break down. Why, for example, should street artists, even if the mode of creation of their works is illegal, not be able to complain of copyright infringement in relation to the appropriation of their works by corporate entities who print them on to t-shirts? After all, there is little connection between an artist’s illegal act in this context and a corporation’s making money off their work.

These, however, are not issues which Indian law has dealt with in any depth. The 1957 Copyright Act continues to comprise a medley of indistinct provisions which deal with content, carriage, and creation, and it is not always easy to determine what is or should be protected by law.

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